Beyond the WTO? An Anatomy of EU and US Preferential Trade Agreements Henrik Horn Petros C. Mavroidis André Sapir (Updated 2010) 1
Motivation for the study Growing number and scope of PTAs Effect on the multilateral trading system. Two views: Worry about discrimination and other negative effects Multilateralising PTAs will solve the problem But what are the precise facts about PTAs? We concentrate on EU and US PTAs, because systemic effects We analyze their substantive content An essential step before we discuss their effect 2
How we proceed Examine all 14 EU and 14 US PTAs with WTO members Divide the agreements into 52 policy areas falling into 14 WTO+: areas already covered by the WTO Agreement 38 WTO-X: new areas, beyond the WTO For each agreement, identify which areas are covered For each agreement and each area covered, identify whether obligations are legally enforceable 3
EU The 28 PTAs (trade in goods AND services in red) Concluded and in force Turkey ( 95) Mexico ( 01) Tunisia ( 95) FYRoM ( 01) Israel ( 95) Egypt ( 01) Morocco ( 96) Croatia ( 01) Jordan ( 97) Chile ( 02) South Africa ( 99) Albania ( 06) Concluded only US EEA ( 92) CARIFORUM ( 08) Israel ( 85) Morocco ( 04) Jordan ( 00) Bahrain ( 04) Singapore ( 03) Peru( 06) Chile ( 03) Oman ( 06) Australia ( 04) NAFTA ( 92) CAFTA-DR ( 04) Colombia ( 06) Panama ( 07) Korea ( 07) 4
The 14 WTO+ areas FTA Industrial goods Antidumping FTA Agricultural goods Countervailing Meas. Customs Administration State Aid Export Taxes Public Procurement SPS Measures TRIMS Measures State Trading Enterprises GATS Technic. Barriers to Trade TRIPs 5
The 38 WTO-X areas Competition policy Investment Measures (not covered by TRIMS or GATS) IPR (not covered by TRIPs) Free Movement of Capital Labor Laws Environmental Laws Social Matters Human Rights Political Dialogue Culture Audiovisual Statistics Energy Terrorism Drug Enforcement Taxation Money Laundering Illegal Migration SMEs Corruption Etc. 6
Defining legal enforceability Test 1: Is the language sufficiently precise and committing to confer rights that could be enforced before a dispute court? The parties shall allow the free movement of capital... Neither party may impose performance requirements vs The parties shall cooperate to... The parties shall strive (aim) to.... Test 2: Does the agreement allow dispute settlement for a particular area? 7
Caveats We examine only the texts of the PTAs, not their actual implementation or effects No evaluation of the depth of the undertakings Some degree of arbitrariness in classifications is inevitable, but the main results should be robust No claim that non-enforceable provisions are unimportant 8
Areas covered in EC and US PTAs CL, MK, OM, PA NAFTA, PE, CO 14 AU 12 10 CAFTA-DR TR BH SG KR CARIFORUM IL MA,TN JO EG EEA ZA MX CL HR MK AL WTO+ 8 6 IL JO 4 2 EC US 0 0 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 WTO-X 9
Areas covered with enforceable obligations in EC and US PTAs 14 12 10 WTO+ 8 6 4 2 EC-LE US-LE EC-AA US-AA 0 0 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 WTO-X 10
WTO+ areas with enforceable obligations Number of PTAs EU (max14) Percentage US (max14) EU US FTA Industrial 14 14 100 100 FTA Agriculture 14 14 100 100 Customs Admin. 13 13 93 93 TRIPs 13 14 93 100 AD 12 12 86 86 Countervailing Meas. 12 12 86 86 State Aid 12 11 86 79 Export Taxes 12 12 86 86 State Trading 12 7 86 50 Public Procurement 7 13 50 93 TBT 5 11 36 79 GATS 4 13 28 93 SPS 3 2 21 14 TRIMs 0 12 0 86 11
Results for WTO+ areas 8/14 of areas covered + LE in almost all EU and US PTAs FTA, industrial and agricultural products Customs administration TRIPs AD and CVD State aid and state trading Export taxes 4/14 are mostly or exclusively present in US PTAs Public procurement TBT GATS TRIMs 12
WTO-X areas with 7+ enforceable obligations Number of PTAs EU (max14) US (max14) Percentage Movement of capital 13 12 93 86 Competition 13 0 93 0 IPR (non-trips) 11 13 79 93 Investment 8 11 57 79 Social matters 7 0 50 0 Environment 2 13 14 93 Labor laws 2 13 14 93 Anti-corruption 0 8 0 57 EU US 13
Results for WTO-X areas Only 8/38 areas contain LE obligations in 7 PTAs or more 3 areas concern both EU and US PTAs: IPR, Investment, Capital Movement 3 areas concern only or mainly US PTAs: Anti-Corruption, Environment, Labour 2 areas concern only EU PTAs: Competition, Social Security 14
Legal inflation, by groups of areas AC EU PTAs LE % L Infl. AC US PTAs LE % L Infl. 1. Trade/Investment (9) 107 98 8% 113 113 0% 2. GATS/TRIPs/IPR (3) 32 28 13% 40 40 0% 3. Migration/Social Reg (3) 23 10 57% 0 0-4. DomTrade-rel. Reg (11) 104 60 42% 103 78 24% Trade and Regul. (26) 266 196 26% 256 231 10% 5. Other (26) 206 17 92% 1 1 0% All areas (52) 472 213 55% 257 232 10% Legal inflation = (AC LE)/AC 15
EU The 28 PTAs (trade in goods AND services in red) Concluded and in force Concluded only Turkey ( 95) Mexico ( 01) Tunisia ( 95) FYRoM ( 01) Israel ( 95) Egypt ( 01) Morocco ( 96) Croatia ( 01) Jordan ( 97) Chile ( 02) South Africa ( 99) Albania ( 06) US EEA ( 92) CARIFORUM ( 08) Israel ( 85) Morocco ( 04) Jordan ( 00) Bahrain ( 04) Singapore ( 03) Peru( 06) Chile ( 03) Oman ( 06) Australia ( 04) NAFTA ( 92) CAFTA-DR ( 04) Colombia ( 06) Panama ( 07) Korea ( 07) 16
Legal inflation, by groups of areas AC EU PTAs* LE % L Infl. AC US PTAs LE % L Infl. 1. Trade/Investment (9) 69 60 13% 113 113 0% 2. GATS/TRIPs/IPR (3) 21 18 14% 40 40 0% 3. Migration/Social Reg (3) 13 3 77% 0 0-4. DomTrade-rel. Reg (11) 65 32 51% 103 78 24% Trade and Regul. (26) 168 113 33% 256 231 10% 5. Other (26) 131 3 98% 1 1 0% All areas (52) 299 116 61% 257 232 10% *Only PTAs with non-european partners 17
Results for legal inflation Overall there is much more of it in EU than US PTAs Most of the EU legal inflation is outside the hard core areas of trade and regulations Nonetheless even in hard core areas, the EU displays more legal inflation than the US In Trade/Investment and GATS/TRIPS/IPR (12 areas) The US has a bigger coverage than the EC (153 vs. 139) And less legal inflation (0 vs. 9%) 18
FINDING: Conclusions 1 Both EU and the US PTAs cover a significant number of WTO+ and WTO-X areas. But EU PTAs cover many more WTO-X areas than do US PTAS Significantly more legal inflation in EU than US PTAs, especially concerning WTO-X areas. Adjusting for legal inflation, US PTAs contain more WTO+ and nearly as many WTO-X obligations as EC PTAs. CONCLUSION: Why legal inflation in EU PTAS? Hard to believe it is unintentional. But can only speculate about reasons. 19
Conclusions 2 FINDING: Adjusting for legal inflation, both EU and US PTAs, contain a significant number of WTO+ obligations and some important WTO-X obligations CONCLUSION: Compared to the WTO, these PTAs are neither mainly more of the same (mainly WTO+) nor mainly ventures into new territory (mainly WTO-X) even though emphasis still seems to lie in the WTO+ areas 20
Conclusions 3 FINDING: Many of WTO-X LE obligations are regulatory: investment, capital movement, intellectual property: EU & US environment, labour standards: US Competition policy: EU CONCLUSION: The PTAs effectively serve as a means for the two hubs to export their own regulatory approaches to their PTA partners Since the EU and the US have pushed, and developing countries have generally resisted, to get these areas on the multilateral agenda, the PTAs in this respect seem to mainly benefit the EU and the US 21
Geographical coverage of EU and US PTAs 22
An EU-US race? Israel Mexico: US (1992) EU (2001) 9 years Morocco: EU (1996) US (2004) 8 years Jordan: EU (1997) US (2000) 3 years Chile: EU (2002) US (2003) 1 year Korea: US (2007) EU (2010) 2 years For the EU that s 6/9 RTAs with non-european partners 23